(PC) Birrell v. DiTomas

• Court: District Court, E.D. California
• Decided: January 27, 2025
• Docket: 2:22-cv-01528
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID WESLEY BIRRELL, No. 2:22-cv-01528-KJM-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 MICHELE DiTOMAS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. Plaintiff has filed a motion to appoint counsel. ECF No. 31. The motion also 19 seeks to have the court appoint an expert witness. Id. at 1-2. Defendants have not responded to 20 plaintiff’s motion. For the reasons stated hereafter, plaintiff’s motion is denied. 21 Motion for Appointment of Counsel 22 District courts lack authority to require counsel to represent indigent prisoners in section 23 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 24 cases, the court may request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 25 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 26 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” 27 exist, the court must consider the likelihood of success on the merits as well as the ability of the 28 plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. 1 || Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered these factors, the court 2 || finds there are no exceptional circumstances in this case. 3 Request to Appoint Expert Witness 4 Plaintiff's motion to appoint counsel includes his argument that the court should also 5 || appoint an expert witness to assist plaintiff in responding to defendants’ expert medical physician 6 || report. ECF No. 31 at 1-2. Plaintiff declares that defendant’s expert witness was “previously 7 || undisclosed.” /d. at 8. Plaintiff is apparently referring to the declaration of B. Feinberg, M.D., 8 | submitted with defendants’ motion for summary judgment. See ECF No. 25-9. The place to raise 9 | plaintiffs objection to Feinberg’s declaration is in plaintiffs brief in opposition to the motion for 10 || summary judgment and the court will consider the issue there. 11 Deposition Transcript 12 Finally, the court notes sua sponte that defendants have submitted portions of □□□□□□□□□□□ 13 || deposition transcript with their motion for summary judgment, but they apparently have not 14 | submitted the entire deposition transcript or an electronic copy of the entire deposition as required 15 || by Local Rule 133G). If defendants want the court to rely on the excerpts of the deposition cited 16 || in their motion for summary judgment, they must file the entire deposition transcript as required 17 | in Local Rule 133Q). 18 | ITIS HEREBY ORDERED that: 19 1. Plaintiff's motion for appointment of counsel and an expert (ECF No. 31) are DENIED 20 || without prejudice. 21 2. Within 10 days of issuance of this order, defendants shall provide the entire transcript 22 | or electronic copy of plaintiff's deposition as required by Local Rule 133q). 23 3. Plaintiff granted additional time up to and including February 7, 2025 to file an 24 || opposition to the motion for summary judgment. No further extensions of time will be granted 25 || absent a showing of extraordinary circumstances. 26 | Dated: January 27, 2025 } asia / a Bu □ 27 UNITED STATES MAGISTRATE JUDGE 28